VA District Bankruptcy Court Rejects Notarization Authenticity Challenge

The Eastern District of Virginia Bankruptcy Court recently provided more context into what it requires to challenge the authenticity of notarized documents.  In In re Bryon F, No. 18-12396-KHK (Bankr. E.D. Va. Sept. 30, 2022), the Court rejected a debtor’s challenge to the authenticity of his signatures on several loan guarantees. 

The debtor had produced a handwriting expert who testified that the debtor did not appear to have signed several of the guarantees.  Yet, the expert informed the court that he could only say with certainty that the debtor “probably” did not sign the documents in question.  Outside of this expert’s opinion, the only other evidence proffered by the debtor was his testimony denying that he signed the documents in question.

The Court held that this evidence was not sufficient to rebut the presumption of validity under Murdock v. Nelms, 212 Va. 639 (1972), which requires the challenging party to proffer clear and convincing evidence of fraud or a non-appearance to challenge the document’s authenticity.  The Court reasoned that because the debtor’s expert only testified that the handwriting on the guarantees “appeared” to not be the debtor’s, his testimony was not “clear and convincing evidence” that fraud or a non-appearance occurred.  The Court additionally opined that a “mere denial” without further proof showing that the notary did not follow their “usual procedures” is insufficient to challenge the presumption.